Episode 4: Part 1--How Real Leadership is Solving the Opioid Crisis

 
Healthcare Solutions Podcast
 

Cristy and Mark Pew begin a discussion around how the Worker's Comp industry took a leading role a while ago and continues today to affect positive change around solving the opioid crisis.  Learn from this important perspective and use insights to move your own organization to take a leading role in the solution as well.  Grab your headphones and #letsfixhealthcare!

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Meet Mark Pew

Senior vice president of product development and marketing for Preferred Medical, Mark is a passionate educator and agitator. Known as the RxProfessor, Mark is focused on the intersection of chronic pain and appropriate treatment, particularly as it relates to the clinical and financial implications of opioids, benzodiazepines and other Rx painkillers along with the evolution of medical marijuana . He is a strong champion for the workers' compensation industry to #CleanUpTheMess, a movement he created to drive attention to the importance of individualized appropriate treatment for injured workers. Mark is a vocal advocate of the BioPsychoSocialSpiritual treatment model. A nationally recognized speaker and writer, Mark received the WorkCompCentral Magna Comp Laude award in 2016 and the IAIABC’s Samuel Gompers Award in 2017. His blog was recognized in both 2016 and 2017 as a WorkersCompensation.com "Best Blog." 

In Ranking of Healthiest Countries, US Comes in at 35

Maybe it’s something in the gazpacho or paella, as Spain just surpassed Italy to become the world’s healthiest country.

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That’s according to the 2019 edition of the Bloomberg Healthiest Country Index, which ranks 169 economies according to factors that contribute to overall health. Spain placed sixth in the previous gauge, published in 2017.

Four additional European nations were among the top 10 in 2019: Iceland (third place), Switzerland (fifth), Sweden (sixth) and Norway (ninth). Japan was the healthiest Asian nation, jumping three places from the 2017 survey into fourth and replacing Singapore, which dropped to eighth. Australia and Israel rounded out the top 10 at seventh and 10th place.

For the Bloomberg 2019 Healthiest Country Index full data set, click HERE

The index grades nations based on variables including life expectancy while imposing penalties on risks such as tobacco use and obesity. It also takes into consideration environmental factors including access to clean water and sanitation.

Spain has the highest life expectancy at birth among European Union nations, and trails only Japan and Switzerland globally, United Nations data show. Spain by 2040 is forecast to have the highest lifespan, at almost 86 years, followed by Japan, Singapore and Switzerland, according to the University of Washington’s Institute for Health Metrics and Evaluation.

“Primary care is essentially provided by public providers, specialized family doctors and staff nurses, who provide preventive services to children, women and elderly patients, and acute and chronic care,” according to the European Observatory on Health Systems and Policies 2018 review of Spain, noting a decline the past decade in cardiovascular diseases and deaths from cancer.

Eating habits

Researchers say eating habits may provide clues to health levels enjoyed by Spain and Italy, as a “Mediterranean diet, supplemented with extra-virgin olive oil or nuts, had a lower rate of major cardiovascular events than those assigned to a reduced-fat diet,” according to a study led by the University of Navarra Medical School.

Meanwhile in North America, Canada’s 16th-place ranking far surpassed the U.S. and Mexico, both of which dropped slightly to 35th and 53rd. Life expectancy in the U.S. has been trending lower due to deaths from drug overdoses and suicides.

Cuba placed five spots above the U.S., making it the only nation not classified as “high income” by the World Bank to be ranked that high. One reason for the island nation’s success may be its emphasis on preventative care over the U.S. focus on diagnosing and treating illness, the American Bar Association Health Law Section said in a report last year after vising Cuba.

South Korea improved seven spots to 17th while China, home to 1.4 billion people, rose three places to 52nd. Life expectancy in China is on track to surpass the U.S. by 2040, according to the Institute for Health Metrics and Evaluation.

Sub-Saharan economies accounted for 27 of the 30 unhealthiest nations in the ranking. Haiti, Afghanistan and Yemen were the others. Mauritius was the healthiest in Sub-Sahara, placing 74th globally as it had the lowest death rate by communicable diseases in a region still marred by infectious mortality.

This post originally appeared on BenefitsPro.com.

Responding to criticism, FDA takes action on opioid oversight

The FDA has come under bipartisan fire in recent years for its oversight of opioids. Treatment advocates and lawmakers have blamed the agency for turning a blind eye to the widespread abuse of prescription medication, both by approving powerful new opioids for medical use and for failing to put in place effective rules to prevent inappropriate prescriptions.

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The agency has proposed new rules that will require drugmakers to conduct studies examining the effectiveness of their medications when used for chronic conditions.

The rules aim to address the fact that doctors are often prescribing highly addictive drugs to treat chronic pain. Many experts have argued that powerful opioids should only be used occasionally to treat acute pain.

Notably, the FDA approved the use of OxyContin for chronic pain with no evidence that it can effectively reduce pain in the long-term.

“There are certain important questions that we could answer by properly studying the chronic administration, looking at the efficacy over time,” explained FDA Commissioner Scott Gottlieb in recent testimony to a Congressional committee.

Experts have highlighted a number of medical practices that have facilitated widespread opioid addiction. Not only have those dealing with chronic conditions become addicted to painkillers due to what were likely inappropriate prescriptions, but prescriptions often include far more pills than necessary to deal with the pain that is being targeted, such as recovering from wisdom tooth removal.

Painkiller addiction has played a major role in fueling an explosion in heroin use, as opioid addicts who have exhausted their prescriptions turn to a cheaper fix on the street. Since 2017 nearly 50,000 Americans have died of opioid overdoses.

This post originally appeared on BenefitsPro.com.

A NOTE FROM A FELLOW TRAVELER

Guest Post by Tom Emerick

When I travel around the U.S. giving speeches I often ask for a show of hands of people who have had relatives harmed by a major misdiagnosis, bad surgery, botched treatment plan, etc. Nearly every hand in the room always goes up and everyone is always incredibly surprised to see this. I then share that if they know ten people who have died of cancer, likely three of those ten were misdiagnosed and given a useless or harmful treatment plan. Jaws drop, but it’s true.

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I follow this with “how are we spending $3 trillion on a healthcare system that is harming so many people?”How is this happening? We’ve all seen bad medical events with our own families and friends, but we don’t realize how common and costly it is.

This is also the core insight behind what’s wrong with the U.S. health care system.

I’ve had the unique experience of being behind the scenes for more than 30 years. This has let me identify seven high-level systemic problems with the US health care system. All are the result of various flawed incentives Dave covers in the following pages. These problems enormously damage our country, both individually and collectively. This book addresses these issues and practical solutions in a systemic way I’ve not found elsewhere.

1. Lack of accountability

Health care providers aren’t accountable to anyone for the quality of care provided in the U.S. A clinician can misdiagnose 20-40 percent of patients, which many do, yet nobody prevents it or stops them. The biggest care quality failure is misdiagnosis. Anything that follows harms you and your wallet. Data shows that misdiagnosis rates in some categories of major care are 20-40 percent! We have an epidemic of misdiagnosis.

2. Status quo lobbying power

Health care institutions in America are very powerful. Few, if any, sectors of our economy have more powerful lobbies at both the national and local levels than health care providers and health insurers. They have $3 trillion reasons to protect the status quo and spend more than anyone to protect it.

3. The American health care exceptionalism fallacy

There is a fallacy in the U.S. that we have the best health care. This is simply not true. We may have the easiest access to care or the most providers in certain categories. However, the cost and quality of this doesn’t really stack up to our peer countries in any critical systemic metric. Our health care is twice as expensive with significantly worse results.

4. Limited individual purchaser influence

The individuals and corporations that pay for over half of health care lack the individual power or influence to offset that of our collective health care institutions. Our government pays the other half, yet even Medicare and Medicaid do a poor job of managing many issues, including the widespread misdiagnosis and over-treatment of patients discussed in Dave Chase's book CEO's Guide to Restoring the American Dream.

5. Widespread conflicts of interest

The world of health care insurers, providers, vendors, buyers, brokers, and advisors is a bizarre world rife with conflicts of interest we just wouldn’t accept elsewhere in society. For example, benefit managers generally hire benefit consultants paid by health insurers and providers. This is a textbook conflict of interest. If Fred hires Bob to sue Joe, Joe would be off his rocker to hire Bob to defend him. Yet this kind of nuttiness is the default approach throughout the purchasing, administration, and delivery of health care in America. Enough is enough.

6. Poor internal financial oversight

Health care plans are one of the biggest areas of spending and financial risks facing public and private employers, yet they’ve been placed in the hands of human resources managers. Taking care of employees is in HR’s DNA and many are very good at it. Unfortunately, this same trait makes many of them poor benefits managers, risk assessors, and financial analysts. Many just have not made the necessary decisions to maximize the quality and minimize the cost of health benefits.

This isn’t from a lack of solutions. They exist. They give employees better quality care, save employees out of pocket spending, and save employers money. Many HR managers are just not willing to shake up the status quo. Alas, the status quo needs to be shaken up badly.

7. Reimbursement is more a wealth transfer than an economic transaction

Expense reimbursement models in health care are not really economic transactions. If a consumer goes to a doctor who treats the consumer, but is paid by a third-party—an employer, insurer, or government entity—this is more a wealth transfer than a classic economic transaction. Market economics do not apply when third parties pay consumers’ bills. Yet this is how health insurance works.

I highly recommend Chase’s book as it explains these problems and the root causes behind them in detail, then offers common sense ways to take control of health care costs and improve the quality of care your employees receive.

It is do or die time. If you think it wise to save our country and health care system, things need to change and change now.

About the Guest Contributor:

Addressing misdiagnosis and overtreatment in cancer, musculoskeletal procedures, organ transplants, and other high-cost areas has a greater impact on patients than any blockbuster drug. Tom Emerick has more experience with these types of claims than most, if not all, benefits leaders. He was Walmart’s Global VP of benefits and ran benefits at Burger King, British Petroleum, and American Fidelity. He’s the author of Cracking Health Costs and created one of the first centers of excellence programs for large employers, subsequently making it accessible for any self-insured employer. He’s been walking the path this book lays out for decades.

Episode 3: Local Government Employers Lead the Way

 
Healthcare Solutions Podcast
 

Cristy talks with David Contorno, Founder of E-Powered Benefits, about how he is helping an upstate SC County with about 1,000 employees break free from status quo healthcare and try something new.  They discuss the many moving parts of affecting change in a positive way even if everyone is not on board at first.  Learn from their experience and get excited about what you can achieve in your own community

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CMS Disclosure Requirement for Employer Health Plans

Do you offer health coverage to your employees? Does your group health plan cover outpatient prescription drugs? If so, federal law requires you to complete an online disclosure form every year with information about your plan’s drug coverage. You have 60 days from the start of your health plan year to complete the form. For instance, for a calendar-year health plan, this year’s deadline is March 1, 2019.

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Background

The Centers for Medicare and Medicaid Services (CMS) is a federal agency that collects data and administers various federal programs. The agency utilizes the CMS online tool to collect information from employers about whether their group health plan’s prescription drug coverage is creditable or noncreditable. Creditable coverage means the group health plan’s prescription drug coverage is actuarially equivalent to Medicare’s Part D drug plans. In other words, the group plan is considered creditable if its drug benefits are as good as or better than Medicare’s benefits.

To confirm whether your plan provides creditable or noncreditable coverage, check with the plan’s carrier or HMO (if insured) or the plan’s actuary (if self-funded). CMS provides guidance to help plan sponsors, carriers, and actuaries determine the plan’s status.

Deadline for Disclosure

All group health plans that include any outpatient prescription drug benefits, regardless of whether the plan is insured, self-funded, grandfathered, or nongrandfathered, must complete the CMS disclosure requirement. There is no exception for small employers.

Complete the CMS online disclosure form every year within 60 days of the start of the plan year. For instance, for calendar-year plans, this year’s deadline is March 1, 2019.

Additionally, if your plan terminates or its status changes between creditable and noncreditable coverage, you must disclose the updated information to CMS within 30 days of the change.

Completing the Disclosure Form

The CMS online tool is the only method allowed for completing the required disclosure. From this link, follow the prompts to respond to a series of questions regarding the plan. The link is the same regardless of whether the employer’s plan provides creditable or noncreditable coverage.

The entire process usually takes only 5 or 10 minutes to complete. To save time, have the following information handy before you start filling in the form:

  • Information about the plan sponsor (employer): Name, address, phone number, and federal Employer Identification Number (EIN).

  • Number of prescription drug options offered (e.g., if employer offers two plan options with different benefit levels, the number is “2”).

  • Creditable/Noncreditable Offer: Indicate whether all options are creditable or noncreditable or whether some are creditable and others are noncreditable.

  • Plan year beginning and ending dates.

  • Estimated number of plan participants eligible for Medicare (and how many are participants in the employer’s retiree health plan, if any).

  • Date that the plan’s Notice of Creditable (or Noncreditable) Coverage was provided to participants.

  • Name, title, and email address of the employer’s authorized individual completing the disclosure.

We suggest you print a copy of the completed disclosure to keep for your records.

Note: Employers that receive the Retiree Drug Subsidy (RDS), or sponsor health plans that contract directly with one or more Medicare Part D plans, should seek the advice of legal counsel regarding the applicable disclosure requirements.

Additional Disclosure Requirement

Separate from the CMS online disclosure requirement, employers also must distribute a disclosure notice to Medicare-eligible group health plan participants. The deadline for distributing the participant notice is October 14 of the preceding year. It often is difficult for employers to identify which employees and spouses may be Medicare-eligible, so most employers simply distribute the notice to all participants regardless of age or status.

Click here to download more information.

This post originally appreared on ThinkHR.com.

NC BENEFITS ADVISOR HONORED, STARTS PODCAST | North Carolina Benefit Advisors

Cristy Gupton, President of a leading North Carolina employee benefits consulting firm, Custom Benefits Solutions, was featured as one of America’s Top 20 Women in Benefits Advising in the October 2018 Issue of the national trade publication Employee Benefits Advisor.

A Morganton, NC resident, Gupton was selected based on her nationally-recognized seminars, publications and work to help employers combat the opioid crisis through employee education and smart design of employee health plans. A cornerstone of her presentations is her vision to simultaneously reduce both supply and demand for opioids by using the employee health plan to improve healthcare while reducing costs.

“While it’s humbling to be recognized on a national level, it also adds fuel to my fire and propels me to keep working until the problem is solved”, said Gupton, who is a member of the peer group The Health Rosetta lead by author and healthcare visionary, Dave Chase. 

"The status quo health plans that most employers offer drive employees to volume-centric primary care centers designed to refer you to expensive (and often unnecessary) services that produce poor patient outcomes," says Dave Chase, author of The Opioid Crisis Wake-Up Call: Health Care is Stealing the American Dream. Here's How We Take It Back. ”Employers are paying far too much for low-quality care – a side effect of which is the opioid crisis – and transparent benefits advisors like Cristy are helping lead a health care revolution and find actionable solutions."

These and other events inspired Gupton to begin a national conversation about finding solutions to the problems plaguing our current healthcare system, she said. 

“That’s when the idea of hosting a podcast came to mind,” Gupton said. “I learn a lot from podcasts and I’m always eager to hear the next one in the lineup. I don’t even need a radio in my car anymore.” 

The launch of her podcast, Healthcare Solutions, will address topics like Direct Primary Care, Reference-Based Pricing, Pharmacy Benefits Management, and many other issues detailing how employers who provide healthcare to over 170 million Americans can improve care while lowering costs.

“I’m excited to bring the problem solvers to the table to talk about real solutions that make a difference,” Gupton said. “In the third episode, the case-study of an upstate SC local government who decided to abandon the status quo and try something new is captured for listeners to learn from. Hopefully, what resonates with listeners is that the solutions are here. It’s just up to us to put them in place.”

Finding the podcast and subscribing won’t be difficult. It’s easily found on Apple podcasts, Google Play, and www.custombenefits.work. Searching the hashtag “#letsfixhealthcare” should lead you right to it. 

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If you would like more information about this topic, please contact Cristy Guptonat828.413.3581or email cristy@custombenefits.work. 

ABOUT CUSTOM BENEFITS SOLUTIONS: Custom Benefits Solutions has assisted employer organizations in crafting the best benefit packages for employees using three core beliefs: Trust, Transparency and Technology. Cristy Gupton, a third-generation insurance expert, founded Custom Benefits Solutions in 2006. She is a co-creator of the Substance Use & The Workplace Community Forum and lead of the Health Rosetta’s Opioid Component Committee.

Download the press release.

2019 Minimum Wages | North Carolina Employee Benefits

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Eighteen states rang in 2019 with new, higher minimum wage rates. These states (AK, AZ, CA, CO, DC, FL, ME, MN, MO, MT, NV, NJ, NV, NY, OH, OR, SD, and WA) have scheduled annual adjustments for their minimum wages based on approved legislation, via ballot initiative, or varying formulas.

Thirty states have a minimum wage higher than the federal rate, sixteen states’ minimum wages are equal to the federal rate, and five states have no minimum wage requirement at all. The higher rate (state or federal) always prevails when the laws differ.

Get the Details

The 2019 State and Federal Minimum Wage Chart is available for free download on the ThinkHR website. They track all state minimum wage rates throughout the year and provide information on changes.

This post originally appeared on ThinkHR.com.

From Resolutions to Reality: 5 Tips for Keeping Your New Year’s Resolutions | North Carolina Benefit Advisors

Ever wonder why the resolutions you make in January don’t stick around after March? You aren’t alone! Studies show that only 8% of peoplekeep their New Year’s resolutions. Only 8%! Why? And how do people achieve their goals set at New Year’s? We’ve broken it down for you so you can identify your goal-breaker as well as give you some tips on how to make those resolutions stick. 

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There are three main reasons that New Year’s resolutions fail. The first goal-breaker is taking on too much (too big of a goal) and expecting it to happen too fast. Researchers have found that it takes 66 days to break a habit. That’s much higher than the previously published 21 days. It conversely means that it also takes 66 days to form a new habit. So, battle your goal-breaker by setting smaller goals and not expecting to master those resolutions by the end of the month.

The second reason you fail to keep your resolution is you don’t have anyone supporting you. This could be because you simply didn’t tell anyone that you have new life goals. It could also be due to fear of accountability. You need some life-cheerleaders that root you on to victory. These cheerleaders also call you out when you are riding off the tracks. Their support isn’t tied to your achievement of your goals but instead their support is firmly tied to you and they want to see you succeed.

The last goal-breaker is that you don’t believe in yourself! When you make New Year’s resolutions that are super unattainable, and then you fail, you doubt yourself. When this cycle persists, time and again, you fill your head up with negative thoughts and begin believing you aren’t capable of accomplishing anything. Self-doubt is powerful. 

Now, let’s steer this ship back on course with some tips on KEEPING your New Year’s resolutions. 

Remember that bigger isn’t always better. 

Set your resolutions as small, attainable, goals.  With those small goals, set realistic timelines to achieve them. Avoid “I want to run the Ironman by November” if you’ve never run more than 2 times a month. Set your goal as “I want to run a 5K by Christmas” and work towards increasing your endurance each week.

Reward yourself along the way.

If exercising is your goal, reward yourself with a trip to the movies if you go to the gym 3 times a week. When you look forward to rewards, and you feel like they are attainable, you are more likely to work hard to get them! 

Tell others about your resolutions. 

Finding an accountability partner helps keep your ship on course as they can encourage you for achievements as well as guide you back to the course when you start to stray. 

Write your goals down on paper. 

Mark Murphy says Writing things down doesn’t just help you remember, it makes your mind more efficient by helping you focus on the truly important stuff. And your goals absolutely should qualify as truly important stuff.”

Identify your purpose. 

Knowing your “WHAT” (goal) is important, but knowing “WHY” can be just as important when it comes to following through on your intentions. Whydo you want to lose weight in 2019? When you put the why to the what, you are truly focused on what matters. “I want to lose weight so that I can play with my children without getting tired and show them that hard work is worth it.”  Now, THAT’S a great goal. 

 

Identifying goal-breakers and goal-makers are equally important pieces to achieving what you set out to accomplish, especially with regards to New Year’s resolutions. Make this the year your goals become reality by focusing on these five simple tips. 

Episode 1: What is Healthcare Solutions all about? with Wes Hawn

Introducing, The Healthcare Solutions Podcast Episode 1!

 
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Healthcare innovations that make a difference. On the show, Cristy Gupton, President of Custom Benefits Solutions, meets with other experts in the industry and talks over solutions to current obstacles. Today's problems with healthcare and how we change it for the better.

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Get Back to Work! | North Carolina Employee Benefits

Managing the Intersection of Workers’ Compensation with Other Leave Regulations

You’re ready when the call comes in. Your client’s employee was seriously injured on the job. You reassure the client that your team has them covered, and you outline their workers’ compensation policy provisions, administrative claim filing process, and accident site investigation protocols.

You check in later in the week. As a result of the accident site investigation, the employer’s worksite processes are updated, equipment is modified, and employees are being trained to prevent future accidents like this one. Employee training records are updated, the OSHA injury/illness logs are completed, and the safety team is monitoring the new processes and systems.

The employee is not back to work, but is progressing well with medical treatment and is receiving wage replacement provided by the policy. Everything is well documented so that the client is ready in the event of an OSHA or state safety audit/inspection.

The client appreciates the extra service and professional advice you’ve given to make the best of the unfortunate accident. You’re satisfied that this situation is under control and make a note to follow up with them in the next few weeks. Your job on this claim is done … or is it?

Important Leave Details Cannot be Overlooked

Your goal is to advise your clients of all risks affecting their business, and it’s likely you haven’t spent much time thinking about the impact of uninsurable HR-related business risks or opportunities to mitigate them. In this situation with an injured worker, there are other employment laws and benefits considerations besides state workers’ compensation rules that your client should factor in when managing time off and return to work.

Although workers’ compensation eligibility, coverage, and benefits rules vary from state to state, most employees are covered when the occurrence is job-related. Depending upon the employer size and type of injury or illness suffered by the employee, the employee also may be entitled to medical and/or disability-related protections under two federal laws: the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). To make things even more complicated, some states have enacted their own disability and family and medical leave laws, some of which provide greater amounts of leave and benefits than the federal rules. Failure to look at the entire situation and take these laws into consideration can prove costly to your client.

Counsel your client to consider the following:

  • If the employee has a serious health situation requiring time off the job, then FMLA may apply.

  • If the employee is disabled, the ADA may apply.

The bottom line is that when employees need time off because of a medical or disability-related issue, it is important to remember that they may have rights under all of these laws at the same (or different) times for the same illness or injury. Each situation needs to be reviewed very carefully, so that the right amounts of time off to manage the condition are provided, and that benefits, compensation, notifications, and other protections are managed.

Avoidable Mistake #1

The most common mistake that employers make with work-related employee injuries/illnesses: Not considering and/or designating FMLA leave concurrently with a workers’ compensation claim. This can result in legal claims for failure to provide benefits, as well as additional costs to the business.

For the claim you just handled, let’s say that the injured employee is off work on temporary total disability for 16 weeks. His doctor then releases him to return to light-duty work, and your client offers him a light-duty job. If they had not properly designated that employee’s time off as FMLA leave, the employee may be able to reject the offer of light-duty work and then be entitled to up to 12 additional weeks of unpaid FMLA leave. Additionally, your client would also be required to keep the employee on their health insurance through those 12 additional weeks of unpaid leave and return him to his former job when he finally returns to full-duty work.

If the client had designated the leave concurrently at the time of the injury, the FMLA job and benefits protections would terminate after the first 12 weeks, while the employee was still on temporary total disability. The employee would then have four more weeks of workers compensation temporary disability, without FMLA protections for additional time off or benefits continuation beyond the wage replacement and benefits provided under workers compensation.

Here’s why: FMLA is a federal law that provides employees up to 12 weeks of unpaid leave per year for specific reasons, including a serious health condition due to a work-related injury or illness. FMLA applies to:

  • Private employers with 50 or more employees working within 75 miles of the employee’s worksite; and

  • All public agencies and private and public elementary and secondary schools, regardless of the number of employees.

Employees are eligible to take FMLA leave if they have:

  • Worked for their employer for at least 12 months;

  • Worked for at least 1,250 hours over the 12 months immediately prior to the leave; and

  • There are at least 50 employees working within 75 miles of the employee’s worksite.

Note: The 12 months of employment do not need to be consecutive, which means that any time previously worked for the same employer can be used to meet the requirement unless the break in service lasted seven years or more. Some exceptions apply.

Within the context of a work-related injury or illness, the most common serious health conditions that qualify for FMLA leave are:

  • Conditions requiring an overnight stay in a hospital or other medical care facility; and

  • Conditions that incapacitate the employee for more than three consecutive days and have ongoing medical treatment (either multiple appointments with a healthcare provider, or a single appointment and follow-up care such as prescription medication).

Generally, basic first aid and routine medical care are not included unless hospitalization or other complications arise.

Employers must also consider compliance with state “mini-FMLA” laws that cover an employee’s serious health condition. California, Connecticut, Maine, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia have enacted medical leave laws impacting private employers. Massachusetts medical leave law provides for leave benefits beginning January 2021, with proposed regulations to be published in March 2019. Other states are considering similar laws.

Avoidable Mistake #2

The second common mistake that employers make with work-related employee injuries/illnesses: Not considering the ADA requirements for entering into an interactive process for reasonably accommodating an employee’s return to work.

The ADA is a federal law that prohibits covered employers from discriminating against people with disabilities in the full range of employment-related activities. Title I of the ADA applies to employers (including state or local governments) with 15 or more employees and to employment agencies, labor organizations, and joint labor-management committees with any number of employees.

The ADA protects individuals with a disability who are qualified for the job, meaning they have the skills and qualifications to carry out the essential functions of the job, with or without accommodations. An individual with a disability is defined as a person who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;

  • Has a record of such an impairment; or

  • Is regarded as having such an impairment.

The ADA does not set out an exhaustive list of conditions covered by the law, making it more difficult for employers to determine with certainty what conditions actually are considered a disability. These conditions require medical interpretation of the severity of the condition by the employee’s healthcare provider, and it is always a best practice to work with medical and legal experts when in doubt. A good rule of thumb to use in reviewing ADA issues is to look at the medical condition in its entirety. Generally, conditions that last for only a few days or weeks and are not substantially limiting with no long-term effect on an individual’s health — such as basic first aid, broken bones, and sprains — are not considered disabilities under the Act.

The ADA does not specifically require employers to provide medical or disability-related leave. However, it does require employers to make reasonable accommodations for qualified employees with disabilities if necessary to perform essential job functions or to benefit from the same opportunities and rights afforded employees without disabilities. Accommodations can include modifications to work schedules, such as leave. There is no set leave period mandated because accommodations depend on individual circumstances and should generally be granted unless doing so would result in “undue hardship” to the employer.

One of the most common questions — and one of the most difficult to answer — is the definition of what is considered a reasonable accommodation.

In the real world, the definition of what is a reasonable accommodation varies and is based on several factors. Examples include: making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; providing qualified readers or interpreters; or reassignment to a vacant position. Determining what is reasonable and does not cause undue hardship to the business can be difficult, so be sure to consult with experts and provide documentation regarding why an accommodation would be unreasonable for the business.

The Department of Labor (DOL) suggests that every request for reasonable accommodation under the ADA should be evaluated separately to determine if it would impose an undue hardship, taking into account:

  • The nature and cost of the accommodation needed;

  • The overall financial resources of the company, the number of employees, and the effect on expenses and resources of the business; and

  • The overall impact of the accommodation on the business.

There are two issues that arise with returns to work that are risky for employers: (1) 100 percent healed policies and (2) light-duty rules.

Regarding 100 percent healed policies, employers cannot require an employee to be completely healed before returning to work because those rules violate the ADA’s requirements to allow workers to use their right to an accommodation. Even if the employee is not 100 percent healed, he or she could possibly still work effectively with an accommodation.

Employers may create light-duty positions as a reasonable accommodation under the ADA or as part of the return-to-work plan from workers compensation. The goal is to get employees back to work at 100 percent of the productivity that they had before the injury, and there are times when a light-duty position might be the next step, with lighter physical requirements and reduced productivity expectations.

Caution your clients to design the light-duty position to meet the physical requirements of the partially healed worker, so that there will be no physical reason for the employee to refuse the light-duty position.

Under most workers compensation plans, an employee’s refusal to return to work in a light-duty position that meets his or her medical restrictions can result in termination of workers compensation benefits. Additionally, the ADA does not allow an employee to refuse work that meets the physical requirements of the accommodation.

Without that careful look at the duties of the position as they pertain to the employee’s medical needs, however, the employee can refuse the position and continue to collect benefits until he or she is able to perform the requirements of the position.

Steps for Success

While these laws have different goals, medical circumstances create overlaps between them. It is important to understand the rules and benefits in order to manage them correctly and avoid the risk of legal challenges and more expensive or longer leaves.

Advise your clients to:

  • Designate FMLA leave for eligible employees concurrently with the workers compensation claim.

  • Keep in touch with injured or ill employees throughout their leave.

  • Manage pay and benefits according to each situation.

  • Carefully evaluate requests for intermittent time off, light duty, or other modified work.

  • Consult with your legal advisors and insurance carriers regarding special situations.

  • Handle returns to work and reinstatement of benefits in accordance with the laws.

This article originally appeared on ThinkHR.com.

The Big-Picture View of Risk | North Carolina Benefit Advisors

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Many human resources and business leaders think about compliance in black-and-white terms. We simply check the boxes and evaluate compliance efforts using one measure: “Are we doing it right or not?”

It’s easy to fall into the trap of failing to see the broader implications of our compliance efforts. We need to go beyond, “What’s the law and what should I do about it?” We need to ask questions like, “How does this law intersect with our culture?” or “What best practices will support this requirement?”  We need to understand that risk crosses our desks every day.

That’s where people risk management comes in.

People Risk Management: What It Is

People risk management is simply the strategic and wholistic view of compliance. It’s really all about the end-to-end story; it’s how we deal with all the things that happen in the employee lifecycle in a way that minimizes risk while maximizing employee engagement.

It’s all about how we anticipate risk, reduce the likelihood of risk events, and deal with them when they do happen. The best companies proactively respond to risk in an ethical way that not just protects us from liability, but also builds trust and respect among the workforce.

People Risk Management: An Example

Let’s say a new sexual harassment law goes into effect in your state. This triggering event (the new law) is just part of the issue. You need to take a big-picture view of the entire situation. You’ll need to know what you should anticipate, what you need to do, and how to evaluate your efforts to make sure you’ve addressed every risk.

Because this law is related to how people behave, in addition to administrative requirements, it can be difficult to understand how to simultaneously address both the risk of harassment and the risk of failing to comply with each aspect of the law. You also need to incorporate your response to this issue into your company culture to demonstrate that you care about protecting not just the company, but also your employees.

When engagement and compliance issues intersect, and you do both well, you create a culture that says you deal with stuff in a clear way, but also you protect yourself from legal risks. It’s a double benefit.

This article originally appeared on ThinkHR.com.

5 Ways to Say Thank You | North Carolina Employee Benefits

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As we begin our new year of 2019, we have also closed 2018 with lots of celebrations, gift-giving, and family time. Showing appreciation for others during this generous season comes second nature for some but for others, it doesn’t.  You may be looking for ideas on how to express your gratitude effectively to those around you and so we’ve compiled a list of five unique ways to say “thank you” to someone.

WRITE IT OUT

Receiving a handwritten note is a rare occurrence in this day. Speaking or emailing a thank you is more common and does effectively communicate the gratitude of the sender. However, the spirit of gratefulness that is communicated by sitting down and taking pen to paper to express your thankfulness for the act or gift received, is a bonus to the note receiver. Take the extra time to write out that thank you.

PHONE A FRIEND

In a day and age of emails and texts and social media, we rarely get phone calls from people who aren’t asking for something—billing issues, appointment reminders, robo-calls.  Even if the person on the other end of the call doesn’t pick up, leave that voicemail telling them thank you for their thoughtfulness for the gift you received. Be specific and mention the gift by name and what it meant to receive it. That phone call may be the brightest part of their day!

SAY IT ON SOCIAL MEDIA

We spend more time scrolling through social media than we do having face-to-face contact with people. Instead of getting caught up in a heated debate on NextDoor, take a few minutes to write on a friend’s wall to tell them thank you. It’s refreshing to see gratitude on display instead of incivility. And it’s always nice to see your friends get noticed for kindness!

FLASH A SMILE

The look of surprise on someone’s face is sometimes the greatest thank you that you can receive! The age old saying of “your face says it all” is true. When you open that gift and you can tell that the giver spent time thinking of the perfect thing to give you, look up and give them the thank you of a smile!

PAY IT FORWARD

Were you bowled over by the thoughtfulness of a gift or act? A beautiful way to show your gratefulness is to pay it forward. Buy the coffee of the person behind you in line. Say three nice things to strangers on the way in to your office. Tell your child a character quality you see in them that is fabulous. While this act of gratitude may mean that the original giver never knows about the ripple effect of their gift, you will, and hopefully that ripple is carried on and on and on.

 

These acts of gratitude are simple, effective, and most of all, meaningful. We should all be more mindful of taking the time to say thank you!

Government Shutdown Update: E-Verify and E-Verify Services Unavailable

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On December 22, 2018 the U.S. Citizenship and Immigration Services (USCIS) and Department of Homeland Security (DHS) posted notice that due to the lapse in federal funding the E-Verify website will not be actively managed and will not be updated until funding resumes. Although some online resources will remain available for employers or employees to review, webinars, myE-Verify accounts, Form I-9 and E-Verify telephone support will not be available.

Understandably, employers may be concerned about how to proceed with hiring or maintaining their E-Verify account. Employers are encouraged to review the guidance on the E-Verify website outlining how to proceed with employment verification during the outage.

Several E-Verify policies have been implemented to assist employers during this time to minimize employer burden:

  • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.

  • The time period during which employees may resolve “tentative nonconfirmations” (TNCs) will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.

  • USCIS and DHS will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.

  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.

  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Although the use of E-Verify and live support are not available, employers that are actively hiring should proceed with the use of I-9’s and verify employment eligibility as required. The E-Verify website states:

“The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) and on I-9 Central.”

This originally appeared on ThinkHR.com.

5 Ways to Update Your Employee Handbook by Year’s End

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How long has it been since your organization updated its employee handbook? It’s time to brush off any layers of dust that have accumulated over the years and make it a priority to conduct a review prior to the year’s end. This article highlights five evolving areas employers can focus on now to start the quickly-approaching new year off on the right foot.

1. #MeToo

The #MeToo movement has shone a spotlight on equal employment opportunity, sexual harassment, gender discrimination, and retaliation in the workplace. Employers may want to carefully review their policies on these subjects, including their complaint and investigation procedures. Harassment policies can include prohibitions against harassment based on any legally protected category in addition to addressing sexual harassment. As a best practice many employers include in their policies clear, complaint procedures that allow for multiple reporting avenues and are available during all shifts. In fact, employers may have an affirmative defense to a harassment claim if an aggrieved employee unreasonably fails to take advantage of an employer’s complaint procedures and other corrective measures. Appropriate training and consistent disciplinary enforcement are also key.

2. The NLRB’s New Guidance on Handbook Rules

In the recent past, much has been made regarding the National Labor Relations Board (NLRB) exercising authority over employers’ social media policies and other handbook policies. Yet, things appear to be shifting to a more employer-friendly direction. On June 6, 2018, on the heels of the Boeing decision, the Board’s general counsel (GC) issued an advice memorandum on the new standard for analyzing whether a work rule violates employees’ rights.  

The GC’s memorandum analyzes common employer rules and provides guidance as to whether a complaint should be issued in terms of three categories of work rules: (1) those that are generally lawful, (2) those that require case-by-case evaluation, and (3) those that are unlawful. The memorandum emphasizes that the agency’s focus is now on whether a rule in question would actually be interpreted to cover protected concerted activity under Section 7 of the National Labor Relations Act. Specifically, the memorandum states that “ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.” Thus, the time is ripe for employers to reconsider their policies regarding civility, photography/recording, insubordination, disruptive behavior, confidentiality, disparagement, and conflicts of interest, among others.

3. Data Privacy

On March 28, 2018, Alabama followed the lead of 49 other states in requiring protection of sensitive consumer information and notice of data breaches, as well as imposing consequences for failing to comply with the law. Due to the prevalence of federal and state data privacy laws impacting the workplace, along with the implementation of the European Union’s new privacy law, the General Data Protection Regulation (GDPR), employers may want to scrutinize their existing privacy rules to ensure compliance.

4. Superfluous Language

Most employers have learned that including an at-will policy in an employee handbook reinforces the principle that employment may be terminated at any time for any lawful reason. Likewise, at-will policies can explicitly clarify that a handbook is not a contract and that employers may revise policies without prior notice.

Employers may also want to take caution to avoid potential promises made by superfluous language. Unnecessary purpose statements, rigid progressive discipline steps, and unrealistic commitments to provide training or a mutually enjoyable work environment can expose employers to liability. To prevent estoppel arguments, employers may want to ensure that they do not label personal or extended leave as falling under Family and Medical Leave Act (FMLA) when it does not.

5. Employee Acknowledgments and Training

Employee acknowledgements demonstrate evidence that employees have received a handbook. Employers can obtain these acknowledgments each time they update their handbooks. Employers can utilize acknowledgements to reiterate an at-will policy and to direct employees to raise any complaints or questions about the handbook or other personnel policies. An acknowledgment can also note that violations of any policy, whether or not identified in a handbook, can lead to discipline.  When employers significantly update their handbooks, they also might want to take the opportunity to train their managers and employees.

Employers will find that dedicating the time and resources to reviewing employment policies on an annual basis may be well worth the investment. 



This post originally appeared on Ogletree.com.

Ask the Experts: Flu and FMLA

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Question: Is the common flu considered a serious health condition under the Family and Medical Leave Act (FMLA)?

Answer: Most cases of the common flu do not meet the definition of “serious health condition” and would not be eligible for Family and Medical Leave Act (FMLA) leave.

Some cases of the flu, however, are severe or result in complications, and these have the potential to meet the FMLA definition of “serious health condition.” This is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Continuing treatment means:

  • The employee has been incapacitated for a period of more than three full days; and

  • Consults with a doctor two or more times within 30 days, or

  • Has one consult with a doctor and a regimen of continuing treatment.

If an employee is out sick with the flu for more than three days, consider whether the need for FMLA leave may exist. This doesn’t mean that you need to go through the whole FMLA process to determine eligibility for each flu absence; just that you shouldn’t automatically reject FMLA requests for the flu either.

Review each case based on the facts, keep the “serious health condition” definition in mind, and if the illness is severe, ask the employee to submit certification from a health care provider to support the their need for leave protection under the FMLA.

This post originally appeared on ThinkHR.com.

Easy Ways to Increase Workplace Wellness | North Carolina Employee Benefits

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Picture this: You’re sitting at your desk at 3 pm and realize you haven’t gotten up from your chair for hours. You realize you’ve been snacking instead of eating a lunch. You have read the same sentence four times and still can’t figure out what it means. Your back hurts, your eyes feel dry, and you feel totally blah. You, my friend, are a victim of a sedentary lifestyle. How can we combat this lack of energy and inattentiveness in our workplace? By adopting healthy workplace initiatives, you will reap the benefits of a more engaged workforce and a healthier environment.  

What’s the problem?

  • The average worker sits 7.5 hours at a desk every day

  • Add in couch time, sitting to eat meals, commute, and sleeping, and it could mean that the average adult is only active for 3 hours in a 24-hour period

  • Prolonged sitting is directly related to higher risk of heart disease, weight gain, and diabetes

  • Poor posture can lead to chronic health issues such as arthritis and bursitis

  • Staring at computer screens for long amounts of time lead to higher instances of headaches and migraines

What’s the solution?

  • Healthy snack options in vending machines—SnackNation and Nature Box have healthy snack delivery services for offices of all kinds and sizes. 

  • Fitness challenges—Encourage different office-wide challenges to promote a more active lifestyle. 

  • Standing desks—Companies such as Varidesk make standing desks or sit/stand desks that lower and raise so that you vary your position during the day

    • Reduces back pain

    • Burns more calories during the day

    • Increases energy

    • Some insurance companies will cover all or portion of the cost if they deem it “medically necessary.”

  • Practice gratitude—keep a daily log of things to be thankful for that day

    • Shown to ease depression, curb appetite, and enhance sleep

    • Spirit of gratefulness leads to more sustainable happiness because it’s not based on immediate gratification, it’s more of a state of mind

  • Get moving during the day—if your office doesn’t have sit/stand desks, schedule time to move each day.

    • Stretch time/desk yoga

    • Computer programs to remind you to move such as “Move” for iOS and “Big Stretch Reminder” for Windows

  • Extra happiness in the office—

    • Add a plant

    • Aromatherapy

    • Host a cooking class to encourage healthy meal plans

    • Pet-friendly office days

 

By showing your employees that you care about their physical and mental health you are showing that you care about them as people and not just employees. This results in higher motivated staff who are healthier. The Harvard Business Review even says that “employers who invested in health and wellness initiatives saw $6 in healthcare savings for every $1 invested.” You cannot always measure ROI on personnel investment, but it looks like for workplace wellness, you can! Now get moving and get your office moving!

Celebrate the Season Safely | North Carolina Benefit Advisors

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As the holiday season approaches, the economy is humming along, unemployment is low, and companies are enjoying the fruits of corporate tax breaks. Time to celebrate? Not so fast, according to the 2018 Holiday Party Survey by Challenger, Gray & Christmas. The survey found that just 65 percent of companies are holding holiday festivities this year, the lowest rate since the 2009 recession.

While in 2009, holiday parties were skipped for financial reasons, the 2018 causes are more complex. Andrew Challenger, VP of Challenger, Gray & Christmas, speculates that the two biggest factors are #MeToo and an increase in the number of remote employees.

If your company is among those celebrating the holiday season this year, what can you do to avoid liability from sexual harassment, alcohol consumption, and other categories of risk?

Risk: Harassment Allegations

  • Communicate behavior expectations to employees ahead of time. Consider using this language to set standards of conduct. You may even choose to redistribute your sexual harassment policy. Be sure to emphasize that all employee policies apply at the party, even if it is off-site or after work hours. Racial or sexual jokes, inappropriate gag gifts, gossiping about office relationships, and unwelcome touching will not be permitted during the holiday party, just as they are not allowed in the office.

  • Do not allow employees to get away with bad behavior. Remind your supervisors to set a good example and keep an eye out for employee behavior that needs managing at the event.

  • Follow up immediately on allegations of inappropriate behavior and conduct a thorough investigation of the facts, even if the alleged victim does not file a complaint and you only hear about the behavior through the grapevine. If corrective action is warranted, apply it promptly.

  • Invite significant others or families. Employee behavior tends to improve at company events when spouses or partners and children are present. If your budget allows, include the entire family in the celebration. Be sure to review your liability coverage with your broker first.

  • Avoid incidents related to relaxed inhibitions by following the tips for reducing alcohol-related risks (see below).

Risk: Alcohol-Related Incidents

  • Take steps to limit alcohol consumption. If alcohol will be served, provide plenty of food rich in carbohydrates and protein to slow the absorption of alcohol into the bloodstream. You can also have a cash bar, limit the number of drink tickets, or close the bar early to deter over-consumption. Also have a good selection of nonalcoholic beverages or a tasty signature “mocktail” available. Make sure water glasses are refilled frequently.

  • Get bartenders on board. If you have underage workers or invite children of employees, be sure that servers ask for ID from anyone who looks under age 30. Ask servers to cut off anyone who appears to be intoxicated.

  • Make sure employees get home safely. Offer incentives to employees who volunteer to be designated drivers, offer to pay for ride shares or taxis, or arrange group transportation or accommodations. Planning for safe transportation can potentially minimize your liability if an employee causes an accident while driving under the influence.

  • Do not serve alcohol if your party is at the office and your policies do not permit drinking on company premises or during work hours. Deter employees from an informal after-party at a bar or restaurant where the alcohol could flow.

Risk: Workers’ Compensation Claims

  • Keep the party voluntary and social. Typically, workers’ compensation does not apply if the injury is “incurred in the pursuit of an activity, the major purpose of which is social or recreational.” If the carrier determines that the company party was truly voluntary and not related to work, you may not be liable for injuries sustained at the party.

  • Go offsite. Hosting your holiday party at an offsite location is a smart idea. Your employees will be thankful for the change in setting, and this could reduce insurance liabilities for your company, especially when it comes to third-party alcohol and injury policies.

  • Check with your broker before the party. Review your insurance policies and party plans to make sure you do everything you can to avoid risk and know how to handle any incidents that result from the party.

Risk: Perceptions of Unfairness

  • Determine how to handle pay issues in advance of the party. You’re not required to pay employees who voluntarily attend a party after hours. However, nonexempt employees need to be compensated if they are working the party or if attendance is mandatory. If the party is held during regular work hours, then all employees must be paid for attending the party.

  • Decide in advance whether and how to include remote employees, independent contractors, temporary employees, or agency workers. Be consistent in sending invitations, and if a category of workers will not be invited to the party, consider other ways to reward them for their hard work throughout the year, such as gifts.

  • Do not penalize employees who choose not to attend. The message may be misinterpreted and could create employee relations concerns. Be considerate of those who do not attend the event due to religious beliefs, sobriety, mental health issues, family obligations, child care conflicts, or any other reasons. Avoid religious symbols or themes as they could offend individuals of different faiths.